How WikiLeaks Could Change the Way Reporters Deal With
Secrets
by Stephen Engelberg
ProPublica
July 30, 2010
http://www.propublica.org/article/how-wikileaks-could-change-the-way-reporters-deal-with-secrets
For the past several decades, there has been an informal
understanding between the reporters who uncovered
newsworthy secrets and the government intelligence
agencies, which tried to keep them from public view.
We would tell senior officials what we'd learned. And
they would point out any unforeseen consequences that
might arise from publication, such as the death of an
American informant. Ultimately, the call on what
appeared rested with editors. But it was a decision
informed by more than our own guesswork.
The release of more than 75,000 classified documents by
WikiLeaks this week makes that arrangement seem as
quaint as vinyl records and typewriters. Julian Assange,
the organization's leader and avowed opponent of the war
in Afghanistan, told Amy Goodman, host of the radio
program Democracy Now, that he saw no reason for
reporters to take such precautions. (Update: Democracy
Now is also broadcast on TV.)
"We don't see, in the case of a story where an
organization has engaged in some kind of abusive conduct
and that story is being revealed, that it has a right to
know the story before the public, a right to know the
story before the victims, because we know that what
happens in practice is that that is just extra lead time
to spin the story [1]," Assange told Democracy Now [2].
The New York Times, one of three global news
organizations given early access to the documents,
followed its customary practice, and before it published
anything approached the administration for comment. Bill
Keller, the paper's executive editor, told me in an e-
mail that the White House ultimately answered three of
its questions in writing. He said those statements were
also provided to The Guardian of Britain and Der Spiegal
of Germany, the other two publications.
According to Keller, the White House also asked The
Times to pass a message to WikiLeaks requesting that it
withhold from release anything "that would endanger
lives."
"We pointed out that we were doubtful of our leverage
with WikiLeaks," Keller wrote. "But we did pass the
message on."
Wikileaks has said it is reviewing an additional 15,000
documents subject to what it described as "a harm
minimization process [1] demanded by our source." It
said "these reports will be released, with occasional
redactions, and eventually, in full, as the security
situation in Afghanistan permits."
Several publications pointed out Thursday that the
75,000 documents WikiLeaks has already put online makes
it possible to identify Afghans who have cooperated with
Western forces. The New York Times reported it had found
"dozens" of instances [3] in which informants, potential
defectors and others could be unmasked.
It is entirely possible that some of these people will
be killed as a result of the publication of these once-
secret documents. In Iraq and Afghanistan, even the
suspicion of collaboration with American forces has
triggered executions.
It has always been difficult to find a balance between
the demands of security and robust journalism. Senior
intelligence officials were never comfortable with the
notion that the press had a right to overrule their
judgment of what should be kept secret. For their part,
reporters worried that officials would exaggerate the
dangers of publication to block embarrassing stories.
When I was a national security reporter, I agreed
several times to delay publication of a story or omit
certain details. Once, I delayed an article [4]
disclosing that Jordanian intelligence had planted an
operative inside a Palestinian terrorist group.
Earlier this month, The Washington Post agreed to
withhold certain details [5] from a searchable database
that included the locations of thousands of facilities
performing top secret work. "One government body
objected to certain data points on the site and
explained why; we removed those items," the Post told
[5] its readers, adding that it did not heed the
complaints of another agency that "objected that the
entire Web site could pose a national security risk but
declined to offer specific comments."
The ferment over WikiLeaks brings the government and
journalists closer to confronting a question neither
side really wants to join: Is there anything more
society could do, or should do, to prevent the release
of properly secret information?
Suspicions have been deepened whenever the government
declassified large quantities of documents and it became
clear that the "secret" stamp was frequently wielded to
conceal mistakes and misconduct, not information
sensitive to national security.
There have been some notable clashes between the press
and government over secrecy. In 2005, The New York Times
brushed aside protests from the Bush administration and
revealed [6] that the National Security Agency had been
intercepting communications involving American citizens
without court approval. The Bush administration argued
that the program was legal and an essential weapon in
the war on terrorism. Times editors pushed ahead, even
after being told they would have "blood" on their hands
if there were another terrorism attack against
Americans. Public reaction to the Times revelation
ranged from praise for uncovering the program to
suggestions that Times editors be tried for treason.
Ultimately, the administration did nothing.
The issue of how the press should handle nationally
significant government documents was joined in the 1971
Pentagon Papers case [7] when the Nixon administration
attempted to prevent The Times and Washington Post from
continuing publication of a secret history of the
Vietnam war. By a 6-3 vote, the Supreme Court held that
such prior restraint violated the First Amendment.
But four justices raised the possibility that courts
could apply a 1950 provision of the Espionage Act that,
while it didn't call for blocking publication in
advance, made news organizations criminally liable for
publishing secrets derived from communications
intercepts or code-breaking. This law, passed at the
outset of the Cold War, is routinely violated but has
never been enforced. It is notable because it focuses on
publication. Every other part of the Espionage Act,
which originally passed in 1917, focuses on punishing
the individuals who pass "information relating to the
national defense," to a "foreign government."
It was clear to me in my years covering national
security for The New York Times (1985-1990) that neither
side really wanted to test the constitutionality of this
statute. A significant percentage of the government's
classified documents include material derived from
eavesdropping by the National Security Agency. The Bush
administration could easily have charged the Times with
a criminal violation in 2005 over its revelations about
an NSA eavesdropping program; it chose not to do so.
The WikiLeaks episode illustrates how much has changed
in just a few years. Government officials hoping to leak
classified material once had to make contact with a
reporter, build trust and physically carry documents out
of their offices to a safe location. An editor would
then study the material and decide whether it was
newsworthy.
Now, the aspiring leaker need only find a way to bypass
the government's security procedures and zip an e-mail
to a secure server. As the Washington Post series
documents, the number of people with security clearances
is exploding. Future leaks are inevitable.
It does not appear that many of the Afghanistan war
documents posted this week derive from electronic
intercepts. But someday soon, something will find its
way on the Web that precisely fits the 1950 act. At that
moment, whoever is president will face some very
uncomfortable choices.
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